Muxes

Or, as just pointed out by me padre, maybe there is an equivalent for the below outside the Philippines.

Bulua Miss Gay 2008

I approach the task of describing Friday evening with some considerable trepidation. The pictures I was able to take don't do it justice at all, so I'm feeling the need to compensate appropriately with words.

The brief story is that I spent the evening as a groupie for the 2^nd runner up at the Bulua Miss Gay 2008 Pageant. It was as least as strange as it sounds; probably more so.

First, a little background. A small posse of gay boys lives upstairs in my dorm, one of whom is what the Filipinos call a girl-boy, or, as I learned last night, an uy-uy. JR prefers to be considered a woman, so I will refer to her that way from now on. From what I have observed and read, this really constitutes a separate gender in the Philippines. Cross-dressing is very prevalent here – it's not unusual for me to be at the mall and see a pack of young men wandering around in skirts and high heels. But beyond that, there seems to be a gender identity that resides somewhere at the intersection of male homosexuality, transgenderedness, and femininity that has no real Western equivalent.

Surprising as it may be in an overwhelmingly Catholic country with a vocal Muslim minority, the Philippines is in practice very tolerant of male homosexuality. There is certainly a bias that translates into discrimination – gay men tend to be associated strongly with the lower classes and customer service positions, and there is no question of them getting married. In practice, however, there is a large degree of good humored tolerance and even affectionate acceptance. I'm sure that part of this has to do with the sacrosanct nature of the Filipino family. As my friend Adrian (nee Richard) explained to me last night, if your son is gay you will just have to accept it – there is no question of cutting off ties or disowning him. Take as secondary evidence the fact that thousands of people showed up for this neighborhood gay pageant. Little kids, straight men, old women, siblings and co-workers of contestants, the local ruffians, the barangay captain and barangay policeman all crowded into the school gym and hooted and shrieked for a good three hours. There was no evidence that this was considered anything other than wholesome, mainstream Friday night entertainment.

Let me try to take things chronologically. I departed from my dorm with Philip, Adrian, and Blaze (from L to R in picture). JR was already in Bulua getting prepared. We took a taxi to Bulua, an outlying barangay in Cagayan de Oro. It is important to note that the gay boys are unusually kind to me, and that their English is generally superior to everyone I've met except the Lims. They were very intrigued by the fact that I wanted to attend the pageant. Did I know any gays in the US? Had I ever been to a gay pageant? Do gays in the US look the same as in the Philippines?

We arrived in Bulua at 6:45. The pageant was scheduled to start at 7. There were literally 20 people there. I was already starting to feel sorry for the competitors – clearly this was some sort of hokey local pageant for outcast gays, and no one wanted to watch. We took a seat in the bleachers. It was hot. We were restless. Blaze joked that the pageant would probably start around 9pm – on Filipino time. Adrian suggested that we go backstage and visit JR. Although we could see 20 contestant numbers laid out on the judges' table, there turned out to only be about four contestants actually present backstage. I wondered about this. We visited with JR, who was surrounded by an older woman and a young man and woman who were trying to do her hair. She was very nervous – worrying about her hair, about her introductory speech, and about her registration form. A few little kids were hanging around and pasting shiny stuff onto big palm-woven discs that looked liked shields, but not much else was happening, so we decided to go to Jollibee for a snack, just across the road.

After some chicken and rice, we came back to the gym. 8pm. Still no one in the audience. We went backstage again, and this time there were at least 10 competitors there. Adrian explained to me that they don't like to get there early because gays are bitches and will 'borrow' one another's beauty supplies and not return them. Interesting. By this time, a few of the more professional candidates had arrived, and things were buzzing backstage with their groupies and little girls watching them dress. We stuck around for a while. The contestants seemed completely nonchalant about having an audience while preparing. A rather busty contestant stood up in the middle of the room and stripped while her helpers prepared her evening gown, and everyone watched. I will say that she did not resemble anything we would expect at a gay men's pageant in the US and leave it at that. I flirted with some little girls, who wanted to know how old I am and whether I have a sister. It was 8:30 and still hot and still no sign of things getting started, so we went back downstairs and took a seat on the bleachers again. Things started to fill up – maybe a few hundred people.

By 9:30, the gym was packed, with hundreds of people in the bleachers and thousands standing on the basketball court. Kids swarmed behind the judges' table, while an elderly barangay policeman with a whistle on a string of rosary beads pretended to be angry and swatted at them to move back; they all responded by grinning, mano po-ing, and continuing to run amuck. Guys selling peanuts and little bags of flavored popcorn were making the rounds. I was squished in between Adrian and Philip – Blaze had gone upstairs to provide moral support to JR who had texted us to say that her hair dresser and registration fee had disappeared and she was having a major case of stage fright. Philip, who is too shy to talk to me because he thinks his English is bad, was variously leaning on me, resting his arm on my lap, and scooting me further over into JR. Filipinos are not particular about personal space. I will note here that straight men in the Philippines wander around with their arms around one another and lean and hold hands, etc without anyone considering it 'gay'.

Finally, around 9:35 the announcer said the competition would be starting! In ten minutes. I realized that Blaze was not joking about Filipino time. More squishing. The gym was getting hot and sticky. There were thousands of people, some of whom were smoking and making the atmosphere even tighter than it would otherwise have been. I felt sorry for the people sitting in the bottom row of the bleachers, who surely wouldn't be able to see over the standing crowd. At 9:45 the pageant actually started. For five minutes, the announcer recites an endless list of names and titles, as is wont to happen in the Philippines. They thank everyone who has had anything to do with anything and recite all of their titles and ties: we thank Honorable Barangay Captain So-and-so; we thank the Bulua Barangay Council including the Honorable blah and the Honorable blah; we thank the Bulua Youth Council; we thank the wife of Honorable Mayor So-and-so. And on. And on. At this point I also stopped feeling sorry for the people in the bottom row of the bleachers – their obvious solution was just to stand up and block my view instead.

Then, the candidates were called out on stage for the first time, in their bathing suits. This terrible picture is the best I could do from my far-off seat in the poorly lighted gym, but I hope it will suffice as evidence that these candidates did not look like boys. In fact, they looked like they could probably take home prizes at prestigious women's beauty pageants in the US. Some had breast implants, others were wearing silicon breasts (as I found out later). None of them displayed any evidence of being male, despite wearing itsy-bitsy, teeny-weeny bikinis. Each candidate was called up to a microphone to introduce herself. Each recited a short motto ("Don't judge a book by its cover." "When God closes a door, somewhere he opens a window." "Beauty is as beauty does.") and recited her qualifications. JR, as I knew, is a registered nurse and was valedictorian at her high school. She had some stage name I didn't entirely catch – Christina Concepcion Ramos or something like that. The candidates came from as far away as Zamboanga and Butuan. Some were nervous, some were flirtatious. Most of the speeches were partly in English, partly in Bisaya. (It is an odd feature of Filipino public events that the announcing is likely to be in English, even when the entire audience is Bisayan.) As one contestant put it: "I was the star of Gingoog. Now I stand before you, sexier, bombastic, and more arousing!"

The bathing suit competition was incredible. Most of the women must take hormone pills, and many looked like they'd had breast or facial plastic surgery. There was a large contingent that was tall and unbelievably slender, and a smaller group that looked more like most actual Filipinas – petite, and pleasantly round. Almost all seemed rather experienced at sashaying around suggestively in heels. They all posed and twirled like runway models. As each came forward, the announcer listed her 'measurements', which – I'm pretty sure – were complete bullshit. The tall, slender ones definitely did not have 36" chests, and the small, plump ones definitely did not have 24" waists. All this time, va-va-voom music is blasting, the audience is screaming and hooting, and a small colored spotlight is projecting swirly shapes onto the stage and audience. Next, there was a break for judging, during which we were treated to that now globally mandatory intermission special: the troop of early adolescent breakdancing boys. Next, the evening gown competition. The gowns were all quite original and flamboyant – none of the junior prom look. I couldn't get any good pictures, but for a taste, see JR in her gown with groupies after the awards were handed out.

The question and answer round was surprisingly substantial, at least for some candidates. Most were asked to explain their mottos from their introductions; a few were asked to explain their stated career goals. JR was asked "As a homosexual, what is your greatest aspiration in life?" My instant reaction, of course, was as a homosexual? Why should this affect your greatest aspirations, blah blah blah. I think, however, that this was the cue for JR to be able to say something a little more topical. Her answer was long, and I only understood part of it, but she ended with, "We did not ask to be made this way, but we homosexuals are also part of God's creation. My aspiration is to be respected in a peaceful and loving Filipino society."

After all 20 candidates did their question and answer session, the first elimination round commenced. I accept that I am lacking in context for the standard of beauty in this competition, but it seemed clear that the goal was to look as much like a glamorous woman as possible. There did seem to be some tension between the candidates who were using surgery and hormones to become more physically female, and those who were dressing up their given bodies to look more female. Either way, the choice of the five finalists was truly bizarre. The first chosen was the most manly-looking of the 20 – the only one who would have fit in a standard American drag context. Her clothes did not flatter her, and she seemed nervous and unpracticed throughout the competition. The second choice was the short, chubby contestand – the one with huge breast implants who had stripped backstage. The third was one of the tall slender girls, who had won the 'best gown' award. She was beautiful, but maybe not the most beautiful of the tall girls. The fourth was JR, who is delicate and pretty, but clearly does not have surgery or hormone treatments. The fifth was another one of the petite girls who looked cute but had a fairly unflattering gown. Each of the top five participated in another question and answer session, this one significantly more hard-hitting. The first girl was asked who should take responsibility for the financial crisis in the Philippines – the president, or the people? JR was asked who she would support in the next presidential election and why. Making the Philippines into a 'progressive nation' and having the people take responsibility for development were common themes.

The candidates were allowed to choose which judge would ask them a question. The tall contestant was the only one who chose judge #1 – Miss Gay Bulua 2006. Adrian whispered to me that they were friends. Ah. After that, I was able to correctly predict the order of the awards among the five. We had two finalists who were probably the least attractive (by the standards of the competition), two who were cute but middle-tier, and only one who was in the top-tier but who would not have stood out if compared to the others who looked like her. And that last was friends with one of the judges. The manly contestant was fourth runner up. The chubby contestant was third runner up. JR was second runner up. The short contestant in the bad dress was first runner up. And, surprise! The tall contestant was the winner.

I don't want to be disloyal to JR. She looked very, very pretty, and I appreciated that she was someone who stood out as not having starved or carved up her body. She is also clearly very intelligent and gave by far the most interesting answers in the Q&A rounds. But, I suspect that she and the other three runners up were placed in the top five to provide a more convincing contrast with the winner. In any event, JR seemed quite happy, and her much-expanded groupie bunch (her nurse co-workers showed up halfway through the competition) was ecstatic.

I don't think that I've fully processed this happening yet. It's clear that this could not have happened anywhere other than the Philippines. I had strongly considered just going to the mall to have some dinner and write a blog post on Friday night instead of going out with the boys. Fortunately, sometimes my better instincts overwhelm my day-to-day anti-social idiocy.

Gay marriage: Part 2

This is my second of three promised posts on gay marriage, examining whether or not the judicial precedent I called on in the first post is itself valid. I started to write a post about the validity of a penumbra of privacy versus substantive due process and whatever. Then I realized that this is boring. And that it’s been a long time since I’ve taken a constitutional law class, so I probably shouldn’t pretend that I’m making sophisticated legal arguments. In brief, I think that the latter is a more valid justification for all of the decisions in the last half century about contraception, abortion, sodomy, etc than the former, but that both of them are pretty tenuous.

Here’s what it boils down to. There are two possible ways to view the Constitution/Bill of Rights as a guarantor of freedoms, and consequently the role of the Supreme Court in interpreting those guarantees. One is as the direct guarantor of life, liberty, and the pursuit of happiness for all citizens. The other is the guarantor of political rights as essential instruments by which the people can protect an arena in which to carry out said pursuit.

If you take the former view, then the intuition that it makes no sense for the Bill of Rights to protect us from troops being quartered in our homes but not from serious infringements on the ability to make decisions about sex and childbearing is reasonable. The Court has a responsibility to defend not only enumerated rights, but also those "implicit in the concept of ordered liberty" -- liberties so fundamental as to make Constitutional citizenship meaningless without them.

However, I think there is a strong argument to be made for the second view. The Constitution doesn’t read like a treatise on the rights of man. It makes no attempt to specify the range of freedoms necessary to the pursuit of happiness. Precisely the intuition that leads people with the first view of the Constitution to find a right to privacy in family matters is in itself an argument against that view. Why would we choose to interpret the Constitution in a way that makes it nonsensical as written?

In this latter view, the Constitution is meant to outline the powers of government, and provide a strong guarantee of the political rights that make full civic participation possible. The authors therefore listed protections against the specific tyrannies which were used in their experience to deny political representation. And, recognizing that their list was based on limited experience, they allowed for new provisions to be added as needed. And, just to be clear, they noted that the list was not meant to be exhaustive of all important individual liberties, just a list of those things which were beyond the pale of majority decision-making. In sum, the Constitution is meant to define and defend the parameters of a valid democratic process, so that everything else can then be decided through that process under the guarantee of its legitimacy.

I don’t think that taking this view requires a literal or ‘dead’ interpretation of the Constitution. Interpreting the spirit of the enumerated provisions can and should involve allowing the scope of applications to change along with society and technology. The protections of the 2nd Amendment should not cover nuclear weapons. The power of Congress to regulate interstate commerce, on the other hand, should expand to deal with any genuine coordination problems or externalities involving commerce between states. So, interstate highways and environmental regulations, yes, handguns in schools, no.

I have two major concerns with the political rights view. The first is that there are probably issues beyond the obvious scope of the enumerated protections which genuinely affect the functioning of the democratic process, such as significant educational or economic barriers. I think, although I am not sure, that this problem can be largely solved through a robust understanding of enumerated protections. Here is where the concept of substantive due process has a role to play, albeit a rather different one than that which is currently implied by the term. To the extent that substantive due process means that political rights are meaningless if not accompanied by fundamental but unrelated personal freedoms such as the ability to marry a person of one’s choosing, I disagree that it can be found in the Constitution. If, however, it means that political rights are meaningless without the conditions which enable one to actually exercise that right, I think it is a powerful concept. In this line of reasoning, I would probably go further than current case law has in some areas, and say, for instance, that some version of universal free primary education should be a constitutional guarantee, as well as public holidays for federal and state elections. I suspect that this sort of interpretation would be sufficient to get us most of the non-privacy related civil rights decisions. It’s also possible that some of the privacy cases could arrive at a similar conclusion through an expansive understanding of equal protection of the laws under the 14th Amendment, although I won’t go into that here.

Let me clarify that given current jurisprudence, I think the Supreme Court ought to strike down both federal and state DOMAs as unconstitutional. To not do so is simply an unfair and inconsistent application of stated principles. Had the Court taken an interpretive approach like the one I describe above for the past 70 years, or were it to choose to do so now, however, I have to admit that state DOMAs would probably stand up to scrutiny. Please understand: under such circumstances I would feel compelled to spend a significant portion of my life working to change the laws, state by state. But I would not feel that they were unconstitutional. This sort of federalism would create space for productive cultural pluralism on the state level. (More on this soon.) Given the ease of moving from state to state in this country – even for the poor – I am not terribly sympathetic to someone who says that the abridgment of a right so fundamental as to negate the exercise of due process is not worth moving to another state to rectify. If certain states are willing to accept an exodus of anyone who wants to use birth control, have an abortion, marry someone of the same gender, or have sex without the moral input of the rest of the citizenry in order to maintain their cultural standards, so be it. We’ll see how that works out for them.

My remaining, and more serious concern is what happens to small, permanent minorities under the political rights view. I am not so concerned about the results of such an interpretation for transitory minority status (e.g. age) or large groups mostly held back by historical oppression rather than minority status (e.g. women, blacks) – these people have a rather good chance to protect their interests through the political process by dint of their numbers or intimate connections to non-minority groups. Groups that are never likely to be large enough to impact political interests, nor integrated enough with majority interests to achieve results through coalition building (e.g. gays, disabled people, possibly Native Americans) don’t really have a fighting chance under a system that protects their ability to participate but not to be free from majority rule in all other areas of life. I don’t know what to do about this.

Gay marriage: Part 1

I know that I’m preaching to the choir, here, but I want to write about gay marriage while CA Proposition 8 is still fresh in our minds. It’s something that I have long felt very, very strongly about, and which I believe is the only morally black and white question facing my generation. That said, I have spent a lot of time discussing it with well-intentioned and definitely non-evil people who hold opposite views, and I think I have come out with a somewhat unusual set of thoughts on the topic.

My intention is to make a few posts:

1. There is a strong case for striking down both the federal Defense of Marriage Acts (DOMA) and discriminatory state marriage laws through the courts
2. Some of the legal precedent supporting the judicial case is itself of questionable merit
3. Everyone should support legal change through the legislative process, regardless of judicial outcomes

*******

First things first. The federal DOMA says that marriage is between one man and one woman, and in essence, that no state will be obliged to recognize a marriage conferred by any state that says otherwise. This seems to me to be an obvious and blatant contradiction of the “full faith and credit” clause of the Constitution, which says that states must recognize the public acts of another state, even when such an act would not occur under its own laws. This rule has been upheld in the case of common law marriage, which is legalized only in a minority of states, although not by the Supreme Court. It is my understanding that this point has been made before, but that the Supreme Court has not yet chosen to hear any of the relevant cases. This seems so obvious to me that I don’t even know what to say about the fact that nothing has been done about it. Maybe I’m missing something? Maybe the Supreme Court knows that if they had to actually hear this case they would set off a firestorm of the sort not seen since Roe?


Next, the more complicated question: Is there a federal case for overruling state marriage laws?

The popular argument about the judicial case for legalizing gay marriage often boils down to this:
Pro – “It’s just like Loving v. Virginia [the case that struck down anti-miscegenation laws]”
Con – “No, that was about race”
Pro – “It’s the same thing”
Con – “No, it’s not”

They are both right, and it’s more complicated than that. Loving v. Virginia provides the bedrock of the case, but you need two more past judicial decisions to bring it home. To make a successful Supreme Court case, you would need to show four things:

1. There exists a ‘right to marry’.
2. If a state wishes to nonetheless deny access to marriage, it must give reasons that meet a standard of strict scrutiny (the high bar that is needed to validate laws that distinguish on the basis of protected classes [e.g. race] or fundamental rights) rather than the usual ‘rational basis’ required for courts to defer to legislatures.
3. A union between two people of the same gender could theoretically meet the legal definition of marriage.
4. DOMAs do not meet the requirements of strict scrutiny.

Right to Marry
The first is provided by Loving. The Court found that anti-miscegenation laws violated not only the Equal Protection clause of the Constitution, but also the Due Process clause. They could have decided the case on Equal Protection alone: “[I]t is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” But they didn’t. They went out of their way to say the following: “[T]he freedom to marry [is] one of the vital personal rights essential to the pursuit of happiness by free men.”

Strict scrutiny
Arguments against Loving as sufficient precedent often point out that since gays are not a ‘protected class’ and DOMAs are not created with the intent to do harm to people of one gender, they need only meet the requirements of a ‘rational basis’ for discrimination. If the defenders of DOMAs can come up with any rational basis (like protecting the traditional values of the state), then the Court must defer to the legislature. However, the decision in the 1978 case Zablocki v. Redhail says, “Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.” Strict scrutiny should be applied, not because gays are a protected class, but because marriage is a fundamental right.

Same-sex marriage is marriage
There is a fundamental right to marry, but does same-sex marriage actually describe something which fits the parameters of this right? In Turner v. Safley, the Court considered a law enabling prison authorities to restrict the right of prisoners to marry, and concluded that such a statute did not even meet the low standard of being “reasonably related to legitimate penological interests” that pertains in a prison setting. Four important attributes of marriage were laid out as “sufficient to form a constitutionally protected marital relationship.”

1. Marriages are “expressions of emotional support and public commitment.”
2. Marriage is an “expression of personal dedication” and for some couples may involve an “exercise of religious faith.”
3. Most marriages are formed “in the expectation that they ultimately will be fully consummated.”
4. Marital status is often “a precondition to the receipt of government benefits, property rights, and other, less tangible benefits.”

The only possible argument that same-sex marriage could not meet this definition lies in the definition of “ultimately[…] consummated”. I will skip a lot of reasoning on this subject, but in essence, it is unlikely that ‘consummated’ equals ‘procreation’ since no state attempts to prevent infertile couples from marrying or asks people to declare their intention to have children upon marriage, and because we have Court cases that explicitly say that contraceptive use in married couples is a-okay because choices about childbearing in married relationships are none of the state’s business.

DOMAs don’t meet strict scrutiny
None of the areas of state interest that are commonly proposed as reasons to restrict the right of marriage to opposite-sex couples can overcome the demands of strict scrutiny set by Zablocki, which require that laws that “interfere directly and substantially” with the right to marry must be supported by “sufficiently important state interests” and be “closely tailored to effectuate only those interests.” For instance, let’s discuss the three areas of state interest proposed in the case that legalized gay marriage in MA, Goodridge v. Massachussets:

1. Connecting marriage to procreation -- Going beyond the case law regarding married couples being allowed to use contraception, there is no evidence that allowing same-sex couples to marry would decrease the likelihood of opposite-sex couples to procreate, whereas the ability to bring children into a family supported by marriage might very well increase the likelihood that same-sex couples would choose to pursue alternative methods of reproduction or adoption.
2. Preserving the optimal setting for child-rearing -- The generalization that homes with two parents of opposite sexes are preferable to same-sex households is too broad to meet strict scrutiny, especially given the lack of respectable social scientific evidence about impact of a same-sex household on children. The Court would never accept restrictions on marriage for people with demographic traits with a better documented correlation with negative parenting outcomes, even though such laws might serve the interest of protecting children’s welfare far better than a ban on same-sex marriage. Social welfare policies more narrowly designed to benefit children or families with children would be more closely tailored to serve the state’s interest in child welfare.
3. Preserving scarce state resources -- Where the state contends that same-sex couples are less financially dependent on each other than opposite-sex couples, MA Chief Justice Marshall responds that, “Massachusetts marriage laws do not condition receipt of public and private financial benefits to married individuals on a demonstration of financial dependence on each other.” A law granting benefits only to individuals or couples with demonstrated need would be a far more obvious and closely tailored method of preserving state resources.

If you need further proof, see what Justice Scalia had to say in his dissenting opinion in the case Lawrence v. Texas, which struck down anti-sodomy laws:

Today's opinion dismantles the structure of constitutional the law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Zing. What a lovely fellow. I had dinner with him once. A poor befuddled Yale Law student made the mistake of beginning a question critical of one of Scalia’s decisions with “My girlfriend says…” Scalia’s response? “Get a new girlfriend.” Period.